Supreme Court Mustn`t Be Blind To Needs Of Deaf Student

COMMENTARY

June 9, 1992|By JAMES J. KILPATRICK, Universal Press Syndicate

Young Jim Zobrest is on one side. The state of Arizona is on the other. In between them lies the Constitution. At the moment, Arizona is winning; 18- year-old Jim is losing. Unfairly, wrongly, federal judges have dumped him on the wrong side of the wall that supposedly separates church and state.

Jim Zobrest is deaf -- profoundly, totally deaf. He is also the devout son of a devout Catholic family.

For the past four years, as a student in a Catholic high school, he has been the victim of religious discrimination.

If he had gone to a public school, no problem: The state would have provided a sign language interpreter for him.

Obedient to their strong religious convictions, Jim`s family wanted him to have a Catholic education. Would the state provide a sign language interpreter? The state said no: We will not help a Catholic boy in a Catholic school.

The Zobrest family brought suit in U.S. District Court. The judge ruled that the First Amendment would be violated if Arizona used public funds to provide the interpreter. Recently, the 9th U.S. Circuit Court of Appeals affirmed that decision.

No decisions have been more tortured, less consistent and less principled than the high court`s pronouncements in this area.

The confusion arises from a thoughtless metaphor coined by Thomas Jefferson in 1802. In writing to a Baptist community he saw the First Amendment as ``building a wall of separation between Church and State.`` In point of fact, there never has been such a wall.

What is this ``wall``? It is not unconstitutional for Congress to proclaim Thanksgiving as a holy day. The Pledge of Allegiance declares our nation to be a nation ``under God.`` Every coin attests that ``In God We Trust.`` The Supreme Court itself begins each session with a prayer for divine protection.

The list of anomalies could be much extended. If the Supreme Court agrees to review the Zobrest decision, the court will have to look again at the 1986 case of Larry Witters. It seems directly in point.

Witters, a blind divinity student at a Christian college in Washington state, applied for state aid. He wanted to become a pastor or a missionary.

Would such aid amount to support for an establishment of religion? No, said the Supreme Court. The aid to Witters would not advance the cause of religion. It was aid to which other blind students were entitled.

Isn`t the same thing true here? The purpose of providing an interpreter is not to advance the cause of religion. It is to advance the cause of Jim Zobrest. An interpreter is not a priest, engaged in religious teaching.

An interpreter is only a conduit, a human telephone wire, an impassive and dispassionate connection between the speaking teacher and the deaf student.

The 9th Circuit took 17 months to decide the Zobrest case. The effect of this delay, for which the circuit court alone is responsible, may be to leave the issue in limbo. Jim has just been graduated from Salpointe High, the Catholic school. His parents themselves have paid for his sign language interpreter. The case may now be moot, but the high court often takes cases presenting issues that ``evade review but may recur.``

It is time for the court to try, once more, to make sense of the Establishment Clause. In the case at hand, Jim Zobrest is deaf. He is entitled to equal protection of the law. Must the court be blind to his needs?